The Ministerial Exception: Why SCOTUS Should Recognize All Employment Decisions by Religious Organizations are Protected from Government Interference by the Religion Clauses

By. Jack Denton, Vol. 22 Staff Writer

In some ways, a religion is like a sports team: individuals join a particular religious tradition, they practice the faith, and they often compete with other religious traditions (but for followers, not a championship). Moreover, like fans of a sports team, believers of a particular religious tradition are frequently fiercely devoted to their cause. Unlike athletics, however, religious traditions enjoy unique constitutional protections, like those found in the Religion Clauses of the First Amendment.

Among these constitutional protections is the ministerial exception, which shields religious organizations from employment discrimination suits brought by employees qualifying as “ministers.” However, there is no “rigid formula” for determining who qualifies as a “minister” within a religious organization. As a result, courts are left to make case-by-case decisions by “taking all relevant circumstances into account and [] determin[ing] whether each particular position implicate[s] the fundamental purpose of the exception.”

This “exception” is problematic for two reasons: first, as Justice Thomas points out in Our Lady of Guadalupe School v. Morrissey-Berru (OLG), it requires courts to answer “an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.” Second, it allows religious organizations to be subject to some claims, violating the church autonomy doctrine, which shields religious organizations from government interference in matters of doctrine and governance. No one would blame the Carolina Panthers if they fired their mascot for showing up on game day dressed as Brownie the Elf––it’s important for everyone in the organization to be unified. This is even more true for religious organizations. Therefore, the Court should abandon the ministerial exception and recognize the autonomy of religious organizations in employment matters.

Justice Thomas’ Concern

            Justice Thomas has concurred in both Supreme Court cases concerning the ministerial exception. He has focused on the theological nature of the question as to whether an employee of a religious organization is a “minister.” In his view, “the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’” By shirking this constitutional requirement and opting for the case-by-case balancing test, the Court runs the risk of “judicial entanglement in religious issues,” violating the Establishment Clause. For example, as Justice Thomas pointed out in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., the many religious traditions in the United States have “different leadership structures and doctrines that influence their conceptions of ministerial status.” How are we to expect any given federal district court judge to be able to competently determine whether someone is a “minister” of one of the thousands of religious organizations in the United States? Moreover, without a bright-line rule or “rigid formula,” religious organizations may be left guessing whether they may be exposed to an employment discrimination lawsuit for letting go of an employee. Justice Thomas has recognized that this raises the possibility that some religious organizations will “conform [their] beliefs and practices regarding ‘ministers’ to the prevailing secular understanding.” This could effectively be chilling religious organizations from fully exercising their First Amendment right to free exercise. Therefore, not only does the ministerial exception require courts to violate the Establishment Clause by making judgments about who is a “minister” within any given religion, it could also be violating the Free Exercise Clause by effectively forcing some religious organizations to conform their practices to be more easily understood by a judge.

Church Autonomy Doctrine

            The church autonomy doctrine is rooted in the Religion Clauses of the First Amendment. It recognizes that these two clauses create a sphere of autonomy for religious organizations to be free from government interference in internal matters, such as governance and doctrine. For example, in Serbian E. Orthodox Diocese v. Milivojevich, the Supreme Court recognized that a secular courtroom is not the place for “religious controversies” to be solved. Similarly, in Watson v. Jones, the Supreme Court said that those who join religious organizations impliedly consent to the organization’s government for decisions regarding “controverted questions of faith . . . .” Furthermore, the Court said that granting the ability of a church’s adherents to appeal any decision of the church to the secular courts would cause the “total subversion” of religious organizations. Thus, it is indisputable that the church autonomy doctrine is intended to protect religious organizations from government interference in matters of faith and governance.

            What then does that include? What is a matter of faith? What is a matter of governance? There can be no question that matters of employment may be related to both faith and governance. If a religious organization chooses to employ an individual, it seems clear that that is a matter of church governance. The employee was hired by someone given authority by the religious organization and now plays a role within it. In addition, the employment of an individual may directly impact the religious organization’s faith or its ability to effectively communicate its faith.

For instance, in Billard v. Charlotte Catholic High School, a Roman Catholic high school terminated the employment of one of its substitute teachers for announcing on social media his intent to marry someone of the same sex––an act expressly proscribed by the Roman Catholic Church. Despite this being at odds with the Church’s teachings, a federal judge found that the school had impermissibly discriminated on the basis of sex and that the ministerial exception did not protect it due to insufficient facts showing his work “implicated the fundamental purpose of the exception,” i.e., “to preserve a church’s independent authority” in matters of faith and governance. But this is exactly the sort of internal matter of faith and governance the church autonomy doctrine blocks from government influence. If the school continued employing Mr. Billard, it would implicitly condone the marriage, as the school requires its employees to “uphold the teachings and principles of the Catholic Church.” Nevertheless, the ministerial exception did not shield the school despite this situation clearly implicating a matter of faith. For the government to step into this situation and tell the school it cannot fire Mr. Billard for violating the school’s faith because the faith just so happens to conflict with antidiscrimination laws flies in the face of the church autonomy doctrine, clearly tearing down the church-state divide and prohibiting the school from exercising its faith.

Conclusion

The Supreme Court seemed to think in OLG that no “rigid formula” for determining who qualifies as a “minister” was needed because “the lower courts have been applying the exception for many years without such a formula.” This misses the mark though. A bright-line rule is needed not because of the workability of the current standard, but because the current standard requires courts to answer “an inherently theological question” and because it violates religious organizations’ right to make decisions concerning internal matters of faith and governance. Therefore, at its next available opportunity, the Court should abandon the ministerial exception and affirm the constitutional right of religious organizations to make employment decisions free from government interference.